What to do about crafty executive orders

Britta Gustafson
October 16, 2020

Ernestine Eckstein and other Daughters of Bilitis and Mattachine Society members picketing the White House - by Kay Tobin, 1965

Update: EO 13950 was revoked on January 20, 2021.

When I read about Executive Order 13950 (“Combating Race and Sex Stereotyping”) from September 22, 2020, I thought of EO 10450 (“Security Requirements for Government Employment”) from April 27, 1953.

I’ve learned a lot about the story of EO 10450, and it taught me to read Executive Orders not at the level of the policy they’re saying they put forth, but at their actual effects. This “Combating Race and Sex Stereotyping” EO says it’s about supporting equality, but in practice it adds burden to companies with government contracts by discouraging informed and nuanced discussions about how to get to equality. Here’s a bit of history, how I read the new EO, and how you may be able to help with this one.

The history of EO 10450

I often think of the work of Frank Kameny and fellow LGBTQ+ activists who challenged EO 10450 and contributed to its repeal. Their work enables me to be a federal worker (formerly an employee, currently a contractor) who is also a queer person. After I learned about this from a documentary (The Lavender Scare) a few years ago, I committed myself to being visibly out at work, as a small way of continuing and protecting their efforts.

Signed by President Eisenhower, EO 10450 was crafted to sound reasonable to many people. It expanded the criteria for evaluating potential and current employees as security risks, including: “Any criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxicants to excess, drug addiction, sexual perversion.”

Those sound like bad things! This was during the Cold War, and the Attorney General justified it in terms of the country’s safety and security — that these characteristics made these people inherently risky, even if they were well-meaning Americans with no secret allegiances: “Employees could be a security risk and still not be disloyal or have any traitorous thoughts, but it may be that their personal habits are such that they might be subject to blackmail by people who seek to destroy the safety of our country.”

What this EO did in practice, and on purpose, was ban gay and lesbian people from federal employment. Many people were interrogated and forced out of federal service, with terrible impacts on their lives, or they had to try to hide themselves and live in fear of being found out.

I’ve filled out my SF-85P and passed my background investigation interview. I’ve sworn an oath to support and defend the Constitution a few times — as a federal employee, poll worker, and volunteer first responder for earthquakes. I’ve contributed years of service to the government with specialized skill in government technology projects.

And I read this old EO and the report in 1950 that supported it, and I see myself called a “sex pervert” who would have been fired as a risk to the government. It hurts, even though it’s old and never applied to me.

The EO was also clever in its broad language. I’m bisexual, and people rarely talked about bisexuality in 1953, but I’m sure I would have counted under the EO’s language of “perversion” — easy to justify as subject to blackmail, even if there was no risk (and alternate ways to mitigate that risk if it existed).

People wrote letters, complained, argued, carried protest signs in front of the White House, sued, and did many other kinds of advocacy for equal treatment of LGBTQ+ people in federal hiring, along with challenging related laws and shifting public opinion over time. There was no single project that pressured the government to change these policies; many people worked together in many ways over many years.

The changes are within living memory. In the 1970s, the Civil Service Commission and State Department removed their policies banning gay and lesbian people from employment. In the 1990s, President Clinton signed non-discrimination EOs that repealed the language of EO 10450. And this order was explicitly revoked during my federal service, in 2017, as a formality by President Obama.

This new EO

A lot of EOs are crafty, because they need to be. They often take a political position and try to ground it in reasonable language and in the existing law, to help them hold up against public opinion and legal challenges.

This EO 13950 (and its OMB clarification memo and Department of Labor FAQ) is very crafty. It frames itself as banning something that sounds pretty bad: “offensive and anti-American race and sex stereotyping and scapegoating”. It starts with inspiring language about equality, quoting Dr. Martin Luther King Jr. and President Lincoln.

It says there is a threat to our country from malign and divisive trainings — and if there were lots of trainings that really existed according to some of these literal descriptions (like “one race or sex is inherently superior to another race or sex”), they sound pretty bad! But they’re not real problems. They’re straw men to serve the underlying purpose of the EO, much like the unsupported threat of gay and lesbian federal workers being broadly subject to blackmail in ways that couldn’t be mitigated without firing them.

One important purpose of this EO is to make the contracting environment less comfortable for people who value anti-racism and care about working in an anti-racist environment. Saying that these values are “anti-American” is a way to try to discourage us from working in this field or applying to jobs in this field. The Lavender Scare was closely related to the Red Scare, which used “un-American” as a way to make an unwelcoming environment for people with certain political ideas and values too.

Another important purpose of this EO is to have a “chilling effect” on anti-racism efforts within contracting companies. It can’t explicitly ban it, so it uses its craftiness to increase the risk of holding this kind of training. It weighs contractors down with the burden of figuring out how to interpret the order, whether to still have some training that might comply, and how to proactively document compliance for the training we believe would be in compliance.

It makes contractors justify our efforts, it burns our time and energy, and it makes us less effective because we have to spend some of our limited non-billable time thinking about it and meeting about it.

This is part of the way that racism works as a system — Toni Morrison explained it:

The function, the very serious function of racism is distraction. It keeps you from doing your work. It keeps you explaining, over and over again, your reason for being. Somebody says you have no language and you spend twenty years proving that you do. Somebody says your head isn’t shaped properly so you have scientists working on the fact that it is. Somebody says you have no art, so you dredge that up. Somebody says you have no kingdoms, so you dredge that up. None of this is necessary. There will always be one more thing.

This order said that “many people” have a “pernicious and false belief that America is an irredeemably racist and sexist country”, and that people teach “divisive concepts” including “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously”. We have to explain, at risk, in depth: well, sort of, it’s a lot more subtle than that, because these are all intentional misinterpretations of important concepts that can be tools to help people (especially white people, but all people) feel empowered to help take constructive action toward a more equal workplace, instead of feeling vaguely guilty and sad without the tools to understand it or do anything about it.

It’s essential to a well-functioning government that employees and contractors understand how racism works, including unintentional racism. It’s essential to working together to build useful services for the public, to understanding our complex lives as people who each live along many different lines of privilege and not-privilege, and to shifting our society toward something that reflects the best stories about what the United States could be.

What next?

So, what do you do, especially if you’re affected by this EO as a federal contractor or an employee of a company that has federal contracts? (If you’re not sure whether your company has federal contracts, you can search for your company in USASpending.gov.)

The question with advocacy is always: what are your abilities and opportunities, especially any opportunities unique to you, with risk you can tolerate? What are your skills, who do you know, who can you reach, who can you nudge, what platforms do you have?

For example:

Can you talk about it with your trusted coworkers and find out who else is concerned about it?

Can you gather enough interested coworkers to ask if your company is willing to make a public statement? Some supporting ideas:

If your company is part of a trade association, can you ask your company to work with its trade association to put out a statement?

If your company’s trade association has put out a statement, can your company ask the trade association to do more, like consider a legal challenge?

Does your company have press contacts, and is it willing to work with them to try to put out stories about the negative impacts of this EO on businesses, including small businesses?

Can you talk to trusted friends at large tech companies that have federal contracts (and lobbyists!) to encourage them to ask their company and its trade associations to make statements and write letters? (So far, several of those companies have declined to comment.)

Can you help your company figure out a compliance plan, so that it can continue to do training instead of being completely chilled?

It’s ok to not be sure what to do, and it’s ok to take one step at a time and iterate from there. Talking with a trusted coworker or two about your concerns is the foundation of pretty much all efforts to improve things that impact your work, and it’s a good place to start.

How this helps

Making public statements is a way of contributing to changes in public opinion, putting up a flag to help you find more opportunities that you didn’t know existed, and enabling somebody you don’t know to email your statement to their leadership as an example of concerns about the EO.

And by sending statements and letters to government officials, companies and trade associations increase pressure on those officials to issue clarifications, ask challenging questions internally, and minimize enforcement.

Of course, this also means taking on risk — risk of perceptions of speaking too loudly or being out of line, possible risk to business partnerships and contracts — and it’s useful to list the risks you expect and decide how to mitigate or accept them.

It may or may not take a very long time for this EO to get changed, but talking about it and making statements about it can help us build workplaces and industries (and a society) where meaningful anti-racism and anti-sexism trainings and discussions, including ones that require attention and nuance and may be challenging, are well-understood as positive and helpful. That’s a good outcome in itself.

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